dissenting.
I cannot agree with the majority opinion upon rehearing any more than I could agree with the original majority opinion in this case. In his dissenting opinion, Chief Justice Cardine has addressed some of my *1189concerns, and I am pleased to join in his dissent. While my efforts at articulation may not be any different than what I said in my prior dissenting opinion, I feel constrained to add some comments.
The majority position is very similar to what might occur if one took a symmetrical last piece of a pictorial jigsaw puzzle and inserted it upside down. In a sense, the puzzle is complete, but the picture is not. The product of the majority position in this case is an incomplete picture. If followed to an academically logical conclusion, what would ensue is that the developer, having granted a limited fee simple estate to the municipality for purposes of a public way, but also having retained a dominant mineral estate, would have the right to obstruct the surface of the street in a reasonable manner in order to develop his mineral estate. The public policy reasons opposing such a result would undoubtedly resolve that situation by denying the developer the right to produce his minerals. Of course, that is not an obstacle to the abutting lot owner who can develop without obstructing the public way. As the owner of the minerals, the abutting lot owner can recover his property without infringing on the surface estate of any other party.
The majority asserts that the adoption of the lot owners’ view would create a special rule of conveyancing which the majority declines to do. In actuality, the result of the majority opinion is to create the special rule of conveyancing which is, as Chief Justice Cardine notes, an implied reservation of a mineral estate. The majority does this despite its concession that, with respect to the street itself, the rule of presumed intent would recognize ownership in the abutting landowners upon vacation. The majority, however, refuses to apply logically the rule of presumed intent to an assumed vertical severance of a mineral estate which, again, as Chief Justice Car-dine points out, is an assumption that is not supported by Wyoming precedent.
I am puzzled about the reliance by the majority on authority from various and sundry jurisdictions rather than Wyoming precedent. My perception of Wyoming case law is that this court has carefully erected, block by block, a structure that readily resolves this conflict. The immediately preceding case is, of course, City of Evanston v. Robinson, 702 P.2d 1283 (Wyo.1985). After Robinson, the resolution of this case by the setting of the keystone was clearly predictable. Instead of following the clear direction of Wyoming precedent, however, the majority has procured a stone from a foreign quarry to denigrate the integrity of the structure. One might say that the product of the majority efforts has been to salt the mother lode in such a way that it has no future value.
To summarize briefly, the Wyoming court has recognized the product of common law dedications. Gay Johnson’s Wyoming Automotive Service Company v. City of Cheyenne, 367 P.2d 787 (Wyo.1961), reh. denied 369 P.2d 863 (1962). In subsequent cases, the effect of a statutory dedication has been treated as having substantially the same effect as that of a common law dedication. Robinson; Ruby Drilling Company, Inc. v. Billingsly, 660 P.2d 377 (Wyo.1983); Payne v. City of Laramie, 398 P.2d 557 (Wyo.1965). See Morad v. Brown, 549 P.2d 312 (Wyo.1976); Coumas v. Transcontinental Garage, Inc., 68 Wyo. 99, 230 P.2d 748, 41 A.L.R.2d 539 (1951). Analysis of these several cases manifests the proposition that the limited fee simple created in a municipality by the statutory dedication has not been treated in any significant way as different from a common law dedication. The interest acquired by the municipality upon dedication is identical for all practical purposes. Robinson. In deciding these cases, the Supreme Court of Wyoming has followed the presumed intent rule, although it has not so identified it. Clearly, it should, if precedent is faithfully followed, apply this rule to the minerals as well as to the surface estate.
In Wyoming, a common law dedication of a street or alley created an easement for public use. Payne. The developer or dedicator retained all interest in the real estate that the easement did not encompass until he conveyed the property. The effect of the conveyance was to transfer the entire *1190remaining interest of the developer to his purchaser. The effect of the statutory dedication has been recognized as creating a limited fee simple in the municipality to be held in trust for proper public use. Payne; Gay Johnson’s. The other effects are the same as a common law dedication. The developer retains the entire interest that is not encompassed in the limited fee simple until he conveys. When the developer conveys, however, the purchaser receives the same interest that a purchaser would receive if the dedication had been a common law dedication. The majority appears to accept this result with respect to the fee simple estate which actually is conveyed to the city by the dedication and would attribute that parcel to the abutting landowner, here the purchaser from the developer, upon vacation of the street. Logic favors doing exactly the same thing with respect to the portion of the real estate lying under the street, but that is not the majority opinion.
The result of the majority approach is unsettled ownership in most municipalities. Upon vacation of a street, the abutting landowner will own whatever the city has used for a street, but the subterranean area beneath the street still would belong to the developer. So, for example, the lot owner would commit a trespass if he drilled a water well from the surface of what had been the street into the estate retained by the developer. There is no sensible justification for that result. Furthermore, it is difficult for lay people to understand why, in those instances in which there has been common law dedication of the street, the abutting landowner owns every thing upon vacation of the street but, in the next block as to which there had been a statutory dedication, the abutting landowner does not. Landowners in the City of Evanston will confront this precise disparate result which the court has fostered, instead of settled. The public policy aspects of this situation demand a conclusion that, if the city is not to have the underlying minerals, they are part of the tract owned by the abutting landowner upon vacation of the street. The justification, of course, is that, in the absence of a reservation by the developer, the minerals were conveyed to the center of the street with the conveyance of the abutting lot.
Perhaps it is helpful to parse the effect of a subdivision with dedication of streets and alleys. First of all, the tract is subdivided into lots. The boundaries of those lots touch one another, but they can be separated by an overlay of a dedicated street, alley, or property for other public use. The effect of a vacation of the property dedicated to public use is to restore the original lot lines.
If one could look from a perspective of the bottom up, one would discover the original lot lines in place up to the level of public use involved in the street. At this point, the boundary would move horizontally and then vertically to the edge of the street. The majority approach, however, is to look from the top down and to conclude that, while one can discern the original lot line for purposes of attributing ownership upon vacation at the depth of public use, the lot line somehow shifted horizontally and then descended vertically with the upshot being that, contrary to standard conveyancing rules, the developer retained that area by implication. The lot line should be constant regardless of perspective.
Thus, in Wyoming, we have adopted a rule of presumed intent to retain, the antithesis of presumed intent to convey. This has occurred in the face of precedent which clearly points to a different result, with no attempt by the majority to distinguish or overrule that precedent. From this point, however, every one of the prior cases is placed in doubt. Foreign law has been relied upon to recognize title in nonresidents of Wyoming. The result is a non sequitur, legally, factually, and morally. Stare decisis, like the Latin language, seems to have died.
I would affirm the district court and hold that the minerals beneath the streets of Moorcroft are the property of the owners of the lots abutting the streets.